The State and the Union

The supreme court of my possible future home-state, California, recently overturned a law banning same-sex marriage, only the second state (after Massachusetts) to do so. The ruling also suggested that homosexuality may be a suspect class (meaning that laws which discriminate on the basis of sexual orientation will be under strict scrutiny). But for now, that's just in the 9th circuit.

Some have heralded it as an advancement in civil rights; others have condemned it as a departure from the traditional concept of marriage. Comments on the WSJ law blog outline the contours of the debate: "Next people will be wanting to marry their pets, mark my words!" one side wails. The other side retorts something like "We don't live in a Christian state. We live in a secular state so values have nothing to do with it. It's just a contract."

First of all, even if marriage is "just a contract", the state has always wanted to regulate who could enter into that contract. Earlier, interracial marriages were banned (see Loving v. Virginia). Marriages below a certain age are still banned, as are polygamous marriages. Why does the state have an interest in banning any forms of marriage at all? As commentator number 2 points out, there is no state religion. Perhaps for marriages below a certain age, we can argue that some parties do not have the legal ability to consent. But what about polygamy between adults? What about marriages between business partners for tax breaks?

The engines of the state have always had an interest in regulating marriage, because they have an interest in regulating community morals. The fact that we don't live in a religious state does not make the judgments of our judiciary value-neutral. Secularity is not a free space where everyone gets to do as they want. We all make value judgments even in the absence of religion. Judges and legislators do the same. So, why are some people angry? I think it's mostly because the judges are following their set of upper-class educated values, rather than a different set of values followed by those who voted in the ban in the first place.

Either way, there is nothing in the law that will require a decision one way or another. Either way, it's a judgment call being made by elites in the society. Is that a bad thing? Not really. Sometimes the society later comes to adopt those values as normal, in which case we will call these judges "forward-thinking" (think civil rights). Sometimes the society does not come to adopt those values, in which case we will call those judges products of their time, stuck in the skewed view of the past (think eugenics).

Am I saying there is no right and wrong? Not at all. I'm just not sure that's what law is all about.